These reasons for decision need to be read in conjunction with the earlier reasons published on 8 December 2017 under citation: Nicholls v Transport for NSW [2017] NSWCATAD 361 which I will refer to in these reasons as 'Nicholls No 1'. The proceedings relate to the applicant's request for specific information on the Sydney Light Rail project, under the Government Information (Public Access) Act 2009 (the 'GIPA Act').
[2]
Background
In the administrative decision under review the respondent refused to release the requested information on the basis that it was considered to be Cabinet information as referred to in cl 2 of sch 1 of the GIPA Act. Such material (as properly considered) has a conclusive presumption of an overriding public interest against disclosure.
In Nicholls No 1, I determined that the respondent's claim that there were reasonable grounds that the material was Cabinet information was not supported by the evidence. As a result the respondent has been required to produce the material to the Tribunal so that I can examine it in order to determine whether it is properly characterised as Cabinet material.
The procedure for the Tribunal dealing with these issues is set out in s106 of the GIPA Act. The section provides:
106 Decisions about Cabinet and Executive Council information
(1) On an NCAT administrative review of a decision by an agency that there is an overriding public interest against disclosure of information because the information is claimed to be Cabinet or Executive Council information (as described in Schedule 1), NCAT is limited to deciding whether there were reasonable grounds for the agency's claim and is not authorised to make a decision as to the correct and preferable decision on the matter.
(2) If NCAT is not satisfied, by evidence on affidavit or otherwise, that there were reasonable grounds for the claim, it may require the information to be produced in evidence before it.
(3) If NCAT is still not satisfied after considering the evidence produced that there were reasonable grounds for the claim, NCAT is to reject the claim when determining the review application and may then proceed to make a decision as to the correct and preferable decision on the matter.
(4) NCAT is not to reject the claim unless it has given the Premier a reasonable opportunity to appear and be heard in relation to the matter.
(5) The Premier is a party to any proceedings on an application under this section.
As a result of the decision in Nicholls No 1, the respondent was directed to file the withheld information consistent with the provisions of s 106 (2). The purpose of these reasons is to set out the decision as to whether the material is Cabinet information (on the face of the documents) and provide an explanation consistent with the provisions of the Act and submissions of the parties.
The initial approach (followed in Nicholls No 1) adopts a principle confirmed by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]-[12]. In the matter of Bennison v NSW Department of Premier and Cabinet [2016] NSWCATAD 101 which dealt with similar issues to this current case, Senior Member Montgomery observed this procedural and legal approach to be taken by the Tribunal at [18].:
The approach to be taken by the Tribunal
18. Each of the parties has provided written submissions and they are in general agreement in regard to the approach to be taken by the Tribunal. As the Respondent has noted, the procedure established by section 106 of the GIPA Act with respect to Cabinet information was recognised by the Appeal Panel in D'Adam v New South Wales Treasury [2015] NSWCATAP 61 at [11]-[12]. At first instance, at paragraphs [45] to [47], Senior Member Walker explained the operation of section 106 as follows:
"45 No doubt in recognition of Cabinet's role and functioning as a collective, indirectly elected executive branch of government, s 106 establishes a special and very different decision-making matrix for claims to the Cabinet information presumption. Not only is the tribunal "limited to deciding whether there were reasonable grounds for the agency's claim", but it is explicitly "not authorised to make a decision as to the correct and preferable decision on the matter" (s 106(1)). The tribunal's task is thus not to investigate the claim de novo or to engage in normal merits review. Its function is more analogous to that of a court undertaking judicial review.
46 In performing this limited task, the tribunal is to give the words "reasonable grounds" their ordinary meaning. In McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 445, three members of the High Court pointed out that the phrase is not synonymous with "not irrational, absurd or ridiculous". "Of course, absurd, and irrational or ridiculous grounds are not reasonable grounds. But the words "reasonable grounds" do not denote grounds which are "not irrational, absurd or ridiculous". The statutory words are to be given their ordinary meaning. It will seldom be helpful, and it will often be misleading, to adopt some paraphrase of them".
47 The respondent bears the onus of establishing that it had reasonable grounds for the claim (s 105(1)) and it must do so on the balance (meaning preponderance) of probabilities: Jorgensen v Australian Securities and Investments Commission [2004] FCA 143, [65]; , 208 ALR 73, 86."
At a Directions hearing on 30 January 2018 the parties were invited to file any further submissions with the respondent also invited to file any further confidential / non- confidential evidence.
[3]
Applicant's further evidence and submissions
The applicant relied on the following material in the second phase hearing on the papers:
Initial submissions filed 14 July 2017.
Supplementary submissions filed 18 September 2017.
Further / new submissions filed 22 January 2018.
[4]
Respondent's further evidence and submissions
The respondent filed the following material in the second phase hearing on the papers:
Open Affidavit of S McMahon (without annexures) affirmed 30 January 2018.
Confidential Affidavit of S McMahon (with annexures) affirmed 30 January 2018.
Confidential written submissions dated 29 January 2018.
Bundle of confidential documents filed 22 December 2017.
It will be necessary to prepare both an open and a confidential set of reasons for decision. The reason being is that it is not permissible for these reasons to divulge the information for which the respondent's claim is made, even if part or all of that information is ultimately ordered for release by the Tribunal. The statutory basis for such caution is located in s 107 of the GIPA Act which provides:
107 Procedure for dealing with public interest considerations
(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.
(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.
(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of:
(a) the public and the applicant, and
(b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
In the current proceedings the respondent has submitted that the above provisions ss 2-3 must apply and in addition I note that the Tribunal is bound to follow the provisions of s 107 (1) of the GIPA Act. This necessitates the provision of open and closed reasons however for efficiency, the open set will be a redacted version of the closed or confidential reasons.
[5]
Applicant's submissions
In further submissions of the applicant dated 22 January 2018 the following arguments were put:
That the respondents claim only one document is Cabinet information on the basis that it reveals or tends to reveal the position that a particular Minister has taken, will take, is considering taking, or has been recommended to take on the relevant matter in Cabinet.
That the claim that the Cabinet Minute may mirror what is contained in the Document would not, of itself, support the contention that the Document itself reveals the position the Minister was considering taking or was recommended to take.
That the document would need to contain that revelation on its face in order to fall within Sch 1 Cl 2(1)- (e).
That the word 'revealed' is the operative word in the clause and that the document must reveal the position, consideration or recommendation.
That is the revelation can only be gleaned by a comparison of the Document with another documents (not the subject of the application) then the disclosure of the Document alone, devoid of the comparison would reveal nothing about the Ministers position.
[6]
Respondents Open evidence
An open affidavit of S McMahon affirmed 30 January 2018 was filed in the proceedings. The deponent is the Business Manager of the Sydney Light Rail Delivery Office. (SLRDO) The deponent was involved in aspects of the GIPA Act application response including requesting initial searches.
In late August 2017 the deponent was contacted by the respondent's legal representatives in the proceedings before the Tribunal and asked to search for emails forwarding the "Sydney Light Rail Update Briefing" dated 10 October 2014 to someone in the Minister for Transport's office on either 9 or 10 October 2014.
The deponent states that none of the relevant officers from the SLRDO who had been involved with the preparation of the SLR Briefing where still with the SLRDO or Transport for NSW. As a result the IT section undertook the email searches.
Various accounts were searched for emails forwarding the Briefing to the Ministers Office with no success. Further searches were undertaken for calendar invitations in the accounts of officers C Lock, J Goodling and M Newham which might disclose an invitation to a meeting with the Minister for Transport on 10 October 2014. These searches were unsuccessful in locating such invites.
In mid-December 2007 the deponent was asked to arrange for further checks to locate evidence of a meeting with the Minister on 10 October 2014. The deponent arranged for searches of documents other than emails and located two documents indicating a meeting with the Minister on 10 October 2014.
An email and a further email with an attachment were located as relevant documentary evidence of a meeting. Those two documents are annexed to the confidential version of the deponent's affidavit of 30 January 2018.
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I note that annexure A to the confidential affidavit of S McMahon of 30 January 2018 confirms matters deposed in paragraph 9 of the open affidavit of S McMahon. I also note that annexure B to the 30 January 2018 affidavit confirms matters deposed in paragraph 9 of the open affidavit of S McMahon.
I am uncertain as to why it is necessary for Annexure 'A' to be received under the confidential provisions of the GIPA Act. I understand and accept an implied basis for Annexure 'B' being confidential, as the contents could arguably fall within Cl 2 of Sch 1 of the GIPA Act, in any (unrelated) application under that Act for which that material was within scope.
I have raised an issue with the respondent in the confidential paragraphs about the SLR Update Briefing (power point) of 10 October 2014 being what appears to be an incomplete copy before the Tribunal. I raise this point in the interests of openness and fairness to the applicant. However I note that by contrasting that material with additional material provided on a confidential basis that deficit can be cured. Without describing the detail of the document itself, I advise that I embarked upon an exercise of comparing and contrasting the subject document (the Briefing) with the other documents.
[7]
Initial findings
On the basis of that process and analysis I am satisfied that because of those matters, the document (SLR Update power point 10 October 2014) is a document prepared before Cabinet's deliberation or decision on matter, and I so find.
I am also satisfied that the document tends to reveal (or would reveal) the position that the Transport Minister was taking to Cabinet, including the other descriptors at cl 2 (1) of Sch 1 of the GIPA Act and I find accordingly.
[8]
Further consideration
In respect of the detailed submissions by both parties as to how I should construe the meaning of the term 'document', I observe the following.
At paragraph 16 of the applicant's written submissions of 14 July 2017 the following is argued:
16. Even if the Tribunal disagrees, and considers that the decision of the first respondent to withhold the financial information on the bases put forward to be correct in all the circumstances, no consideration appears to have been given by the first respondent to the possibility of redacting any commercially sensitive figures or data, but allowing the applicant access to the balance of the Document.
The applicant then submits that such an approach would be more consistent with the general public interest in disclosure as per s12 and the objects of the GIPA Act.
The respondent submits that such an approach is impermissible when having regard to the 'reasonable grounds' preliminary approach as provided in s 106. Such an approach is available only if the matter proceeds to the further stage of determining the correct and preferable decision on the information.
I accept the submission of the respondent and in addition note that the language in Sch 1 cl 2 refers to documents rather than the term 'information'. Information under the GIPA Act concerns the further stage for release of material outside of the information for which there is a conclusive presumption of overriding public interest against disclosure, but has no part to play in cl 2 other that the term 'Cabinet information' which is defined in the clause explicitly as 'documents' rather than 'information'.
Unfortunately, as the Cabinet claim is the preliminary and paramount position of the decision under review, the Tribunal is guided by the ordinary meaning of the term 'documents' rather than 'information' in this consideration. Consistent with the reasoning set out in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 255 by Brennan CJ, and noting the provisions of the Interpretation Act 1987 in my view the term document clearly extends to the types of examples in cl 2 (which deals with Cabinet information). All of those examples in subclauses (1) (a) to (f) inclusive are in my view documents.
Whilst some of those documents may completely contain the relevant material such as:
(b) a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet's consideration (whether or not the document is actually submitted to Cabinet),
other documents may contain minimal material which would as 'information' be defined as Cabinet material.
The following is an example of the later observation:
(d) a document prepared after Cabinet's deliberation or decision on a matter that would reveal or tend to reveal information concerning any of those deliberations or decisions,
(e) a document prepared before or after Cabinet's deliberation or decision on a matter that reveals or tends to reveal the position that a particular Minister has taken, is taking, will take, is considering taking, or has been recommended to take, on the matter in Cabinet,
I note that subclause (e) was an active ground in these proceedings. For the above reasons I find that the entire document must be withheld.
[9]
Conclusion
As a result of the above findings, the decision of the respondent dated 7 March 2017 will be affirmed.
[10]
Orders
1. The decision of the respondent dated 7 March 2017 is affirmed.
[11]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 April 2018